Idea storage

Friday, June 24, 2005

Supreme Court's decision to allow eminent domain for economic development (as long as certain conditions are met)

In yesterday's Kelo v. New London, a 5-4 majority of the Court approved the Conn. town's eminent domain to be used for economic development, as long as the town had a plan for how the taking would serve a public purpose. That is, the town couldn't just take the property so as to confer the benefit on another private party. But otherwise, the town could take the property to serve the public interest.

A lot of blawgers are talking about this decision: e.g., the mysterious Volokh conspiracy, and SCOTUS blawg -- each including links to a variety of different commentaries.

I have mixed feelings about this issue, I have to say. In my younger adult life (I'm 31 now), that is, about five years ago, I was a true believer in libertarianism -- Nozick and Friedman style, more or less. I can articulate the libertarian position in debate easily, and even as of two years ago, during the Bush-Kerry N.H. primary battle of '04, I frequently argued with Howard Dean volunteers, advocating a libertarian position (of course, I was not popular with those jokers, but they're all gone now anyway).

But I've gradually come to soften substantially in my libertarianism, in large part because of my disillusionment with the notion of rights, as a fiction introduced to justify the maintenance or seizure of power. As I mentioned before, my second reading of Nietzsche had a powerful influence on me that brought home a few things, and caused me to embark and a study of the basics of the theory of evolution (still have a lot to learn, of course - and, truth be told, I'm excited about it).

I still have libertarian leanings, because I do believe that power tends to corrupt, and bureaucratic institution of all sorts tend to take on a life of their own, including the "desire" to grow and ultimately reproduce. It may be, as David Friedman notes, that libertarianism, from a utilitarian perspective, has value. That is, he has stated that he is a utilitarian morally, but believes that a Kantian-type of respect for rights as having value in and of themselves, regardless of their utility, will ultimately produce the greatest utility. If that were the case, wouldn't be that convenient? Almost some sort of proof for God, although I couldn't tell you what Friedman's metaphysics are, if he has any.

Anyway, bottom line is that I don't know how I would have decided this case. The underlying criticism seems to be that corruption can never actually be proven, but it is their on some level. That is, the public won't actually benefit, only a big business that was able to influence a government. It's the case for small government, no doubt.

On the other hand, what if that turns out to be false? What if there is a case where say, it's a rich person who owns a lot of land, and it really is in the best interest of the public to take that particular land? Is the anti-Kelso argument that that's simply not possible? Or is the argument that that's possible, but the private person's property rights should never be trumped?

I know the following line of reasoning will infuriate libertarians but let me just toss it right out there: if we take the "anti-takings," or the "hard libertarian" position to its logical conclusion, then the land all belongs to the natives (what's left of them, anyway). Sure, the building belong to "us," but the land belongs to the natives. We stole it from them and everyone knows it. Why isn't the true libertarian position that the land should go back to the natives? Somebody explain that to me. Then we'll talk about the stupid fifth amendment.

New Hampshire Supreme Court: three new decisions

Tothill v. The Estate of Warren Center; Mt. Washington Assurance Corporation v. Phenix Mutual Fire Insurance Company (consolidated appeal) (June 24, 2005): The primary issue was whether Tothill, who was injured while employed by Center, could sue him for negligence. Because she accepted workier's compensation benefits, she could not - her sole remedy was through worker's compensation. Her argument that she was not a "domestic employee" as defined by the worker's compensation statute was irrelevant, because, although perhaps Center was not required to obtain worker's compensation for Tothill, he did, and her claim was accepted.

Appeal of Simone Riendeau
(June 24, 2005): The Court upheld the tribunal's decision that a cashier who sold cigarettes to a minor, but otherwise had a perfect employment record, was not entitled to unemployment benefits. The tribunal did not err in finding that this single act was "deliberate," thus rendering the cashier's unemployment the result of misconduct.

Soraghan v. Mt. Cranmore Ski Resort (June 24, 2005): The question was whether the Ski Resort should be liable for Soraghan's injuries, when Soraghan was not paying to ski, but was on the premises to watch and volunteer. The Court found that, even though Soraghan didn't pay to get in, she was on the property for a "purpose related to the landowner's business for which the landowner customarily charges." Therefore, RSA 508:14 did not give the Ski Resort immunity, because this statute was designed to promote private land being opened up for recreational use without charge. The Court also rejected the argument that RSA 212:34 gave the Ski Resort immunity for the same reason. Rather, the Court found that ski operator liability is governed by RSA 225-A, because it specifically addressed ski operators, not the general recreation use of land.

Thursday, June 23, 2005

Should President Bush be Impeached?

Brian Leiter is a professor of law and philosophy at the University of Texas. He has regularly maintained a "blawg" (law-related blog) since September of '04. He suggests that Bush be impeached. His rival is Juan Non-Volokh, author of the "libertarian leaning"Volokh Conspiracy. Volokh apparently is a law professor, but he write anonymously. His blog is popular. For some reason, Leiter wants to publicly identify "Mr. Non-Volokh." In this post from a few days ago, he brings the dispute to a head. It's half way between wrestling and the McLaughlin Group. I love it!

Leiter looks like an interesting guy. He's written stuff on Nietzsche, so he must know a thing or two about The Genealogy of Morals, one of those books that tends to stick with you, and change the way you think about the world. He seems likely to have an interest in Critical Legal Studies, an area that I'm interested in, but struggling to piece together the full meaning of.

By the way, I do not necessarily support impeaching President Bush, although I would be willing to examine all of the evidence and make an independent assessment. It's possible that Bush didn't lie, because he didn't have the requisite mental state to lie. That is, he didn't intentionally state assertions he knew to be false. However, he may have had a negligent or reckless disregard for the truth. At some point there's a fine line between ignorance and lying. Perhaps his recklessness for the truth was so extreme as to be tantamount to lying.

A second requirement, by Leiter's own admission, needs to be met for it to be wise to impeach: there must be an imminent need to replace Bush. That is, simply because Bush could be impeached doesn't mean he should be. I'd have to be persuaded of that. I mean who is going to replace him? Cheney? He's worse than Bush. There'd be no point. And obviously it would be unprecedented for both Bush and Cheney to be impeached. So it all just seems like a fantasy. I don't see even a democrat coming in and doing anything different. I mean look at who voted for the war. All of the democrats. So where does impeachment get you anything different.

Subject matter jurisdiction of the New Hampshire Motor Vehicle Industry Board

As I may have mentioned before, part of the purpose of this blawg is for me to learn more about civil law (all of my experience is on the criminal side). So I will be describing and discussing civil cases as they come out. If anything looks funny, send me a line and I'll issue a correction if necessary.

Harley Davidson Motor Company v. Seacoast Harley Davidson (June 23, 2005)

The seacoast franchise protested when Harley Davidson reassigned nine Mass. zip coes that had previously been assigned to Seacoast. Seacoast filed a protest with the Motor Vehicle Industry Board (See RSA 357-C:12), and Harley Davidson moved to dismiss, arguing, among other things, that the Board does not have subject matter jurisdiction over decisions affecting Mass. The Board denied that motion and Harley Davidson appealed to the Superior Court, which dismissed the appeal as premature.

The N.H Supreme Court found that RSA 357-C:12 authorizes appeals only of final orders. This includes decisions regarding subject matter jurisdiction. Therefore, the superior court correctly ruled that Harley Davidson's appeal was premature.

Wednesday, June 22, 2005

Client confidentiality

Without thinking much about it, in an earlier post, I discussed a few decisions where my office, but not myself, represented the defendant. Then I went back and deleted those posts from the blog, because I decided there was no purpose to discusse those cases. I don't think it's unethical but I decided to err on the side of caution.

Here's my reasoning for why it's not unethical: (a) at the appellate level the trial has already occurred, all facts are on the record, etc; (b) often the appellate lawyer never meets his client, or if he does, no confidential information is exchanged, and this is well known; (c) as long as the blog post is consistent with the argument already made on public record, and does not unfairly slant the facts either way, it doesn't seem to disservice the client, particularly considering the very few people reading a blog; (d) SCOTUS, which covers the Supreme Court, is sponsored and prmariand primarily written by a firm called Goldstein & Howe, which advertises itself as practicing exclusively in the Supreme Court. On that blog, they discuss their own cases, always with a cautionary warning that they represent one of the litigants.

Having said all, there are so many things to talk about, why risk disrespecting a client's confidence?

Who will be the next Justice of the Supreme Court?

The Chicago Tribune has an article today naming Bush's supposed "short list" of individuals who he will nominate to replace Rhenquist, should the Chief retire in the near future (you have to subscribe to the Tribune for free to read the article). Attorney General Alberto Gonzales is at the top of that list and has at least three things going for him: (1) Bush wants to nominate the first Hispanic Justice; (2) it is thought that he would sail through confirmation proceedings; and (3) Gonzales and Bush have a good personal relationship. Social conservatives consider Gonzales a disaster of a selection because his views on abortion and affirmative action are either unknown or moderate.

Could it be that Gonzales will be the latest in a line of Justices appointed by Republicans who turn out to be more liberal than even their colleagues appointed by Democrats? I'm thinking most notably of Earl Warren (Eisenhower); William Brennan (Eisenhower); and John Paul Stevens (Ford). Some might argue that Souter and Kennedy somewhat belong in this category as well. Maybe 30 years from now, nobody will even be able to tell you the political party of the President who appointed "Justice Gonzales"

Monday, June 20, 2005

Welcome to my blawg

My name's Andrew Winters and I'm an assistant appellate defender. I started working with the New Hampshire Publice Dender in 1999, and worked for five years as a trial lawyer out of the Concord office. This past September I started a two-year rotation in the Appellate Defender office, which is also out of Concord, but which covers appeals across the state. I never realized just how much I had to learn about the law! It's been rejuvenating though, to get a new perspective on things.

My experience is in the area of criminal law, but I also have an interest in all practice areas I realized this when I caught myself reading civil cases for no particular reason other than that they just came out. I especially like the legal malpractice and ethical complaint cases for some reason.

Through this "blawg" I hope to cover topics of interest to the New Hampshire legal community. Sometimes I tend to wander into other topics -- like politics, national news, even history and philosophy. My goal is to keep those to a pleasant minimum with this particular outlet.

The goal of this blawg is to be useful to people who practice, or care about, law in New Hampshire, in all areas. While I know most about criminal law, I will try to cover all practice areas. If you know more about a topic than me (or think you do) feel free to e-mail me a comment, which I will post if I want. Or better yet, start your own blawg, and I'll make sure to link to you (unless you're totally crazy).

The opinions expressed in this blawg are solely my own, and do not represent those of my employers in any way, other than coincidentally. In fact, nobody even knows about this blawg but me.

Nothing in this blawg should be construed as legal advice.